Sunset Brick & Tile, Inc. v. Miles

• Decision Date: 27 June 1968
• Docket Number: No. 373,373
• Citation: 430 S.W.2d 388
• Parties: SUNSET BRICK & TILE, INC., et al., Appellants, v. Taft E. MILES et al., Appellees. . Corpus Christi
• Court: Texas Court of Appeals

Page 388

430 S.W.2d 388

SUNSET BRICK & TILE, INC., et al., Appellants, v. Taft E. MILES et al., Appellees.

No. 373.

Court of Civil Appeals of Texas.

Corpus Christi.

June 27, 1968.

Rehearing Denied July 25, 1968.

John H. Benckenstein, Beaumont, for appellants.

W. Jack Salyer, Bay City, Carroll, Matthews & Willatt, Mike Willatt, Houston, for appellees.

NYE, Justice.

OPINION

Plaintiffs brought suit against Sunset Brick & Tile, Inc. and Daniel V. Leazer for personal injuries resulting from a collision of the automobile in which they were riding and Sunset's truck driven by defendant Leazer. Three separate suits involving the four plaintiffs were consolidated for trial after pleas of privilege were overruled as to all suits. ¹

Briefly, the collision occurred during a misting rain one morning before sunup while the plaintiffs were riding to work near Palacios. The automobile in which they were riding crashed into the rear end of the appellants' slow moving truck which was loaded with bricks. The jury after a week and a half of trial convicted the appellants of various counts of negligence; summarized as: knowingly driving the truck-trailer in question without lights or reflectors on the trailer. The acts of negligence were each found to be a proximate cause of the collision in question. The driver of the car in which the plaintiffs were riding, was killed. His particular case is not involved in this appeal. The appellants do not attack the sufficiency of the evidence nor do they allege any error that occurred during or throughout the actual trial. Their appeal is based on twenty points of error that present four basic contentions which are briefed and argued together as such.

Appellants' first contention is that plaintiffs' argument to the jury relative to damages was based on a unit of time or per diem argument; and that the attorney for the appellees used figures and mathematical calculations on charts and placards which were not in evidence. In the final argument to the jury, the attorney for the plaintiffs while discussing damages, made certain mathematical analysis of the damages sought by each plaintiff. These were apparently set forth on charts. The charts were not brought forward in the record and therefore we have no way to examine them. The attorney for the plaintiffs based his estimate of future damages on figures using the number of years of the life expectancy of each of the plaintiffs, and multiplied the same by an estimate of the damages to arrive at a figure in dollars and cents. These figures were suggested by the attorneys as an estimate of the damages that plaintiffs incurred. Appellants' objection came after a discussion before the jury of these damages as to one of the plaintiffs. Plaintiffs' attorney was arguing that this plaintiff had had physical pain and mental anguish for 753 days from the time of the accident to the time of the trial. The attorney stated: 'I use the figure of $5.00 a day. You may think it should be more. You may think it should be less.' To this argument the appellants objected on the basis that this was a unit of time argument for pain and suffering; it was not supported by the evidence, and that the same was prejudicial to the defendants. The court overruled the objection and granted the appellants' attorney's request for a continuous objection to the unit of time or mathematical formula argument.

Appellants in support of their contention that this was error, cite and quote authorities from other jurisdictions. However, the rule in Texas is well settled to the contrary of appellants' contentions. The propriety of arguments grounded upon mathematical analysis has been long accepted by the appellate courts of this state. Justice Pope had this to say relative to such contentions in the case of Hernandez v. Baucum, 344 S.W.2d 498 (Tex.Civ.App.--San Antonio 1961, n.r.e.):

'The propriety of arguments grounded upon a mathematical analysis has been accepted in Texas. Texas & New Orleans R. Co. v. Flowers, Tex.Civ.App., 336 S.W.2d 907, 916; Louisiana & Arkansas Railway Co. v. Mullins, Tex.Civ.App., 326 S.W.2d 263, 267--268; Continental Bus System, Inc. v. Toombs, Tex.Civ.App., 325 S.W.2d 153, 163; Texas Employers' Ins. Ass'n v. Cruz, Tex.Civ.App., 280 S.W.2d 388, 390; J. D. Wright & Son Truck Line v. Chandler, Tex.Civ.App., 231 S.W.2d 786, 789. The attack upon arguments and visual aids which cut the pain period into segments is that there is no evidence of the monetary value of pain, but that argument, if valid, would eliminate all awards of damages for pain. Pain is translated into dollars with difficulty, whether the jury looks at the total period and grasps a figure from the air, or looks at the pain per year, as here, and multiplies the yearly estimate by the total of the years. The damage issues themselves divided the pain into periods of time. The time from injury to trial was one period, and from trial to the future was another. The law recognizes that pain is a proper item for recovery; that it is susceptible only for an approximate monetary evaluation, that jurors may arrive at a figure from their common knowledge and sense of justice, and that counsel may suggest what they believe the evidence will support. * * *'

See also Chemical Express v. Cole, 342 S.W.2d 773 (Tex.Civ.App.--Dallas 1961, ref. n.r.e.); Mid-Tex Development Company v. McJunkin, 369 S.W.2d 788 (Tex.Civ.App.--Dallas 1963). Appellants' points one through six are overruled.

Appellants' second contention is taken up with points seven and eight. This concerns error because of jury argument. At the very outset the attorney for the plaintiffs made the usual courteous remarks to the jury and thanked them for their time and attention and discussed with them the attorney's responsibility in representing his clients. The attorney told the jury that he and his colleague had attempted to present the case to them in as favorable a light as possible. Quoting from the argument the attorney said:

'* * * So it is up to Dong and I to bring their (the plaintiffs') case before you and in as favorable a light as we can. In this responsibility is quite frightening to me. We have tried to bring you the truth. We have brought you everything, everybody that we knew that knew anything about this accident.

'I think that the Defendants set the tone of their defense from the very first day, they set the tone two years ago. That is this case has been developing for two years. We have worked, and we have searched for the truth to bring it to you and everytime that we turn around to try and get the truth, they throw a roadblock up.

MR. BENCKENSTEIN: If Your Honor please, I want to object to this type of argument, this is a lawyer testifying in front of the Jury, what they have done in this case. It is prejudicial.

MR. SALYER: I withdraw it, Your Honor.

THE COURT: The Jury is instructed to disregard.'

Following this instruction by the court, the attorney continued and explained to the jury that they had attempted to see the truck in question and finally had to go into court and get a court order just to see the truck and the trailer. Continuing and quoting from the argument:

'* * * Doug Matthews, Jack Maddocks, Lipscomb Norvell and myself met Bill Prather, for three hours we went over this truck that was sitting out in the sun, but fortunately we got a couple of pictures of it with a Polaroid. Ladies and gentlemen, they even switched trucks on us.

'MR. BENCKENSTEIN: Now, Your Honor, I want to object to that, because there is no such evidence in the record, and there hasn't been any change of any trucks or switching of any trucks. There is no evidence of that, there is nothing in the record and we ask that counsel stick to the record.

'THE COURT: I think counsel can argue what he surmises from the evidence, and with those instructions I will overrule.'

The evidence showed that in the week before the trial the attorneys for the appellees had obtained a court order and had gone to Gonzales, Texas where they were shown a truck-trailer represented by the appellants to be the truck-trailer involved in the collision. The trailer was sitting out in the sun and the appellees and their representatives went over it for 2 1/2 or 3 hours. The attorneys took polaroid pictures of the trailer which were subsequently admitted into evidence. The evidence was that the trailer which was shown to the appellees' attorneys was represented by the president of appellants' corporation to be the trailer involved in the collision. However, a highway patrolman who had investigated the collision, testified that the trailer shown in the polaroid pictures was not the trailer that was involved in the collision. He said that there was a difference in that the trailer involved in the collision only had one light on either side of the rear end of the trailer and had no reflectors. Whereas the trailer shown in the polaroid pictures had two lights on either side, plus reflectors on either side. The highway patrolman produced pictures at the time of the trial to substantiate his story. Other witnesses also testified that the lights on the rear end of the trailer involved in the collision were the same as that testified to by the highway patrolman, and were not the same as the trailer shown to the appellees' attorneys in Gonzales by appellant.

It is settled law that in jury argument the attorney may make reasonable inferences and deductions from the facts in evidence. The attorney is permitted considerable latitude in making deductions from the evidence in his argument before the same would amount to reversible error. If the first part of the argument quoted above was error, the trial court's instruction cured the error. Younger Brothers, Inc. v. Myers, 324 S.W.2d 546 (Tex.Sup.1959); Transport Insurance Co. v. Burditt, 294 S.W.2d 248 (Tex.Civ.App.--Eastland 1956). We hold that in any event the error, if any, was not calculated to cause, nor did it...